Illegally Obtained Evidence-brief Notes

8/16/2019 Illegally Obtained Evidence-brief Notes

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ILLEGALLY OBTAINED EVIDENCE

How does a court faced with illegally obtained evidence deal with the evidence, for example evidence obtained in violation of the Constitution OR obtained in breach of other statutes? A common way in which evidence is obtained illegally is through illegal

searches and illegal seizures e g brea!ing into somebody"s house and obtainingevidence, through deception, threats, bribes inducement or tric!ery

#he issue has to be loo!ed at in two ways$ %ection &' of (olice Act& %ection $$) of Criminal (rocedure Code

% $$) of the Criminal (rocedure Code deals with the power that is given to searchplaces #he power that a *agistrate or police officer may be permitted to search anyplace, building, ship, aircraft, vehicle, box or receptacle but they have to do this througha certain procedure i e %earch warrant +ssentially if you search and find something

you are allowed to seize it t could be a thing or document f you do not have a searchwarrant the search may be said to be illegal

%ection &' of the (olice Act empowers police officers investigating offences to searchany place that they believe has material necessary for the purposes of the investigation#he re-uirement to get a search warrant may be dispensed with in instances where apolice officer believes that the process of getting the warrant is going to causeunreasonable delay n these instances what is re-uired is that the officer shouldrecord in writing the basis upon which they form the opinion that if they go loo!ing for asearch warrant there is going to be inordinate delay

#here are two approaches to illegally obtained evidence$ *andatory inclusion.& *andatory +xclusion

/nder common law 0urisprudence there is mandatory inclusion whereas under /%1urisprudence there is *andatory +xclusion

n common law the status is accurately represented by the words uttered by 1usticeCrompton2 3 t matters not how you get it, if you steal it even, it would beadmissible in evidence 4 in R v Leatham. The only exception that is entertainedunder common la is here the e!idence consists o" a con"ession hich has#een o#tained in conse$uence o" some inducement or oppression%

A confession that is obtained as a conse-uence of the deception or inducement of theperson confessing is not admissible even though it be relevant + g a confession madeto a colleague to a person in 0ail has been held not to be confessed to a person inauthority

n civil cases there is no discretion to exclude admissible evidence 5ut even in criminalcases there is a conflict between & positions i e where you admit all relevant evidence


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to ensure that the guilty are punished and then there is the view that to admit improperlyobtained evidence condones and encourages impropriety on the part of the police i ewhy go through proper channels if you can obtain evidence illegally #here is noprovision in the +vidence Act to guide us 6or instance if somebody got evidencethrough phone tapping is it admissible?

#he Constitution is very clear in such instances7students are to identify the relevantarticles as captured in the class discussion

Lloyd V% &ostyn $)8& $' *9: 8;) where Chief 1ustice > $ A+ R &@ #he Appellant was convicted with being in unlawfulpossession of two rounds of ammunition contrary to Regulation ) of the emergency

regulations of $=>& /nder the +mergency Regulations only a police officer or an officer above the ran! of assistant inspector was empowered to stop and search an individual#he appellant was an employee of a +uropean settler farmer and had been grantedleave of absence to go to his rural home in the reserve He was stopped at a roadbloc!,a police constable stopped him and on searching him found him with the two rounds of ammunition and a pen!nife @ persons witnessed the search but were not called totestify #he accused was charged and convicted of this capital offence and sentencedto death He appealed contending that the evidence used to convict him was illegallyobtained #he court held that the evidence was properly obtained

'in* V% ) +,-, + AC ./0

(olice obtained a search warrant to search a house belonging to one 1oyce Cohenloo!ing for


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facts of this case are that the defendant was ta!en to a police station following a trafficaccident He was as!ed whether he wanted to see a doctor, he agreed to see a doctor

At no time had he been told that the results of the examination might be used inevidence against him t was not made clear to him that the doctor would en-uire onwhether he was fit to drive At the trial for drun! driving the doctor gave evidence that

the driver was driving under the influence of alcohol and the defendant was convictedHe appealed #he appeal court -uashed the conviction on the ground that even thoughthe evidence was admissible, had the accused realised that the doctor would giveevidence on the matter of driving under the influence of alcohol, he might have refusedto submit himself for examination and in refusing to be guided by this case, the court inKing v R stated that there was no evidence in the ing"s case of oppressive conduct or tric!ery on the part of the police #he court essentially seems to be saying that illegalityis graded, ie #hat there is illegality that can be allowed to pass but there are caseswhen it is reprehensible

5e""rey V% Blac6 2+,743 8B 0,/ #he defendant was arrested by & police officers of the

drug s-uad for stealing a sandwich from a public house #he officer improperlysearched his home and found Cannabis and the defendant was subse-uently chargedwith possession of drugs #he accused put up in his defence that his house wassearched illegally #he first court ruled out the evidence of the search as inadmissiblehaving been illegally obtained #he prosecution appealed and the appeal was allowed#he Appeal court held

$ #hat the mere fact that evidence is obtained in an irregular fashion does not of itself prevent that evidence from being relevant and acceptable to court.

& Any court has the discretion to decline to allow any evidence brought by theprosecution if they thin! it will be unfair or oppressive to allow it

) V% 9an* 2+,7,3 : AE) 1 +:::

#he Appellant was charged with conspiracy to utter forged /% 5an! Dotes He pleadednot guilty before the case opened Counsel for the Appellant applied for a trial within atrial to show that the Appellant had been induced to commit the offence by a policeinformer acting on the instructions of the police #he appellant was averring that for theinducement, he would not have committed the offence Counsel was hoping topersuade the 0udge to exercise his discretion to disallow the evidence of thecommission of the offence #he 1udge however ruled that he had no discretion toexclude the evidence #he appellant changed his plea to guilty and was convicted andsentenced He appealed against the 0udgment and the appeal was allowed by the courtof appeal and then the state appealed to the House of ord #he House of ord heldthat

$ A 1udge in a criminal trial always has discretion to refuse to admit evidence if itspre0udicial effect outweighs its probative value.

& +xcept in the case of admissions, confessions and evidence obtained from anaccused after the commission of an offence, a 1udge has no discretion to refuse to


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admit relevant admissible evidence merely because it had been obtained by improper and unfair means

@ #he use by the police of an agent provocateur or an informer to obtain evidencewas not a ground on which the discretion should be exercised %uch a factor mayhowever be considered in mitigating the sentence imposed on the accused

8 #he defence of entrapment had no place in +nglish aw and could not beaccepted by a 1udge as a ground for exercising the discretion to exclude theprosecution"s evidence of the commission of the crime

t would appear that the R v %ang articulates the common law stand succinctly if evidence is relevant to a fact in issue it is admissible provided it is not obtained under inducement, confession or after the commission of an offence #he common lawposition is almost the opposite of the position which exists in the /% #oday #he /%1urisprudence tries to run away from the law #he law that is used to exclude illegallyobtained evidence is the 8 th Amendment which reads as follows273the right of the people to be secure in their persons, houses, favours and effects

against reasonable searches and seizures shall not be violated and no warrant shallissue but upon probable cause supported by oath or affirmation and particularlydescribing the place to be searched and the persons or things to be seized 4

#he -uestion as to whether illegally obtained evidence is admissible in the /% has beendebatable

;ee6s V%


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prosecution #he court continued to state that under the %upreme Court of /nited%tates in ;ol"e !% Colorado a state was not prevented by federal constitution fromadopting the rule as it prevailed in Ohio On appeal to the /% %upreme Court it washeld that as a matter of due process evidence obtained by a search and seizure inviolation of the 8 th amendment is inadmissible in a state court as it is in a federal court

f the supreme court holds evidence to be inadmissible it should apply across the board

#he /% Courts have gone even further and held that even if the evidence is notobtained illegally, where such evidence is obtained in such a manner as to bereprehensible according to the spirit of the constitution, such evidence shall not beadmissible Dote the importance that 0urisprudence attaches to people"s rights

n enya the reigning position is that in 'uruma s(o 'aniu !% )% #his Case has beencriticised in the context within which it was decided t was decided during emergencyregulation times #he position seems to be that the end 0ustifies the means

Illegally Obtained Evidence-brief Notes

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